Celebrating The Court’s Common Sense — And Lamenting Its Mistake

The OSHA opinion is here: the “Health” opinion is here. We earlier went through the Fifth Circuit quashing the OSHA mandate.

The Court ruled twice yesterday. Once on the OSHA dictate, and once on the “healthcare” dictate. They got the first one right, the second one wrong. They used the fallacious reasons they rejected in first to justify their ruling in the second. I think we can blame John “Save The Government” Roberts for this. Again.

Let’s do both cases in order. This is a long post, friends. But an important one, because it says crucial things about our coming form of government: the expertocracy.

OSHA DICTATE

OSHA, the Court said, may create safety standards , “only in the narrowest of circumstances: the Secretary must show (1) ‘that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,’ and (2) that the ’emergency standard is necessary to protect employees from such danger.'”

Here, these “hazards” and dangerous “substances” would not have been some curious chemicals or physical obstacles, but people. People. Stay away from the bad people!

The axed attempt at legislation by Experts “draws no distinctions based on industry or risk of exposure to COVID–19.” That echoes the general panic. No sense of risk, costs of “solutions”, or severity. Just panic, panic, panic.

The Court summarized, “The employer must verify the vaccination status of each employee and maintain proof of it.” This, like requiring health “insurance”, and much else, from employers because they are employers, only strengthens companies and the expertocracy. It causes a culture in which people look up to employers as their lords and masters. This is inescapable.

Here is the Court trying to pull back from the creeping expertocracy (II-A):

Applicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate. Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is no “everyday exercise of federal power.”…It is instead a significant encroachment into the lives—and health—of a vast number of employees. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” [citing prior opinion]… There can be little doubt that OSHA’s mandate qualifies as an exercise of such authority.

It would be direct rule, the creation of not just of de jure but de facto law by Experts. The Court said nuh-uh: “The question, then, is whether the Act plainly authorizes the Secretary’s mandate. It does not.”

The Solicitor General does not dispute that OSHA is limited to regulating “work-related dangers.”…She instead argues that the risk of contracting COVID–19 qualifies as such a danger. We cannot agree. Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.

My heart soars like a hawk. For the Court recognized that unemployment does not cure Covid. They recognize the Don’t Stand Here Fallacy. “OSHA’s indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an ‘occupational safety or health standard.'”

Alas, they immediately forget they wrote this in the “Heath” dictate (see below).

Then comes Gorsuch, Thomas, and Alito writing separately, concur with the whackage, with the reining in of Experts, and do their best to deepen the sting:

And when it comes to that obligation, this Court has established at least one firm rule: “We expect Congress to speak clearly” if it wishes to assign to an executive agency decisions “of vast economic and political significance.”

OSHA’s mandate fails that doctrine’s test. The agency claims the power to force 84 million Americans to receive a vaccine or undergo regular testing. By any measure, that is a claim of power to resolve a question of vast national significance. Yet Congress has nowhere clearly assigned so much power to OSHA.

Their recognizing Congress’s power over Experts asserts there is still a remnant of the old capitalistic sentiment in government. It’s fading, to be sure, and rule will eventually pass to Experts. But not today.

Our fellows also recognized that this had nothing to do with employment:

As the agency itself explained to a federal court less than two years ago, the statute does “not authorize OSHA to issue sweeping health standards” that affect workers’ lives outside the workplace… Yet that is precisely what the agency seeks to do now—regulate not just what happens inside the workplace but induce individuals to undertake a medical procedure that affects their lives outside the workplace.

You can’t take your gene therapy spike-protein-factory drug off when you doff your uniform. OSHA does believe unemployment cures covid.

Another small cut at the expertocracy:

The major questions doctrine serves a similar function by guarding against unintentional, oblique, or otherwise unlikely delegations of the legislative power. Sometimes, Congress passes broadly worded statutes seeking to resolve important policy questions in a field while leaving an agency to work out the details of implementation…Later, the agency may seek to exploit some gap, ambiguity, or doubtful expression in Congress’s statutes to assume responsibilities far beyond its initial assignment. The major questions doctrine guards against this possibility by recognizing that Congress does not usually “hide elephants in mouseholes.”…

Whichever the doctrine, the point is the same. Both serve to prevent “government by bureaucracy supplanting government by the people.”

Well, I’m no fan of “government by the people,” the people famously being prone to manipulation via propaganda. I’m in favor of governance by Experts. Our Experts, though, not theirs. Their current crop of Experts are sliding into lunatic anti-Reality ideology. I’ve said it a hundred times, but I believe there is no ridding ourselves of the expertocracy. Technology guarantees it must be the eventual and complete form of government, and sooner than we’d like. Our only solution (you’ve heard me say) is to replace their Experts with our Experts.

Who’s up for some dissent from the woke and progressive branch, Breyer, Wise Latina, and Kagan, the Tremulous Trio? They open:

Every day, COVID–19 poses grave dangers to the citizens of this country—and particularly, to its workers….

It spreads by person-to-person contact in confined indoor spaces, so causes harm in nearly all workplace environments.

Unemployment cures covid! You can’t catch it from indoor spaces unless you possess a W-2. Remember this statement the next time somebody tells you how much more intelligent leftists are.

Interestingly, they take on complete faith OHSA’s statistical model (emphasis mine): “OSHA estimates—and there is no ground for disputing—that the Standard will save over 6,500 lives and prevent over 250,000 hospitalizations in six months’ time.” No grounds for disputing, forsooth!

That, and this, is the type of deference Experts have come to enjoy: “Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies.”

Take this seriously: outside of its competence. That will be the form the expertocracy takes. You must defer to Experts, even if you yourself have expertise. Experts, once they form a “consensus” (i.e. issue an edict) cannot be questioned.

This is why they trotted out Biden yesterday and had him say, “I make a special appeal to social media companies and media outlets — please deal with the misinformation and disinformation that’s on your shows. It has to stop.” As I joked on Twitter, The Ministry of Truth will issue lists of approved truths.

There must necessarily be such a list. How else can you define “misinformation and disinformation”?

The Tremulous Trio, probably because of Breyer, knows it had to answer the “substance” argument the Court made. They said “The virus that causes COVID–19 is a ‘new hazard’ as well as a ‘physically harmful’ ‘agent.'” But, somehow, they forget that it is only people not “hazards” that can get sick.

They add “The virus also poses a ‘grave danger’ to millions of employees.” Again, unemployment cures covid. Brilliant.

I’ll skip other arguments which are all we must defer to Experts in one way or another (“OSHA expressly considered that claim [that people would lose their jobs], and found it exaggerated”). All of them contain not even a whiff of a hint of a notion that Experts might have got it wrong or are over-certain. Experts have ruled, and that’s good enough for the Tremulous Trio.

Instead, here’s their last thrust, which is the standard cry of What About The Children! “If OSHA’s Standard is far-reaching—applying to many millions of American workers—it no more than reflects the scope of the crisis.”

This shows they have no appreciation for the actual numbers, which comes as no surprise, as Wise Latina made clear in the oral arguments. The figures in her perfervid imagination were just as real to her, or rather more real, than the actual, and far less dramatic, figures.

Underlying everything else in this dispute is a single, simple question: Who decides how much protection, and of what kind, American workers need from COVID–19? An agency with expertise in workplace health and safety, acting as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?

You’ll have noticed this carries the implicit, and false, assumption that somebody must do something. The Somebody Must Do Something is a terrible fallacy, which I write about in Everything You Believe Is Wrong.

Their assumption was not proved, and indeed I believe it is false, for the many reasons I have detailed in well over 100 coronadoom updates. But it is the default assumption in an expertocracy. It may be said to be its dogma.

You will have heard that even though the Court squashed OSHA, whoever is behind Biden still command companies to assert their power and fire—and therefore cure—those who won’t take the dictated medicine. Some companies will do this. But many will not, fearing a lawsuit. And knowing which way the numbers are going.

“HEALTH” DICTATE

The people behind Biden dictated that in order to receive Medicare and Medicaid funding, hospitals had to fire those who refused their medicine. Again, unemployment cures covid.

Here the court, led by the Cucked Cons—Kavanaugh and Roberts, but surprisingly (to me, anyway) not Barrett; though maybe it’s because she wasn’t necessary to tip the vote—and of course joined by the Tremulous Trio, agreed. We expect the TT to get it wrong, by default. But here Kavanaugh and Roberts said one thing in the OSHA dictate, and say its opposite in its “Health” dictate.

They ignored all they had said in the other suit, and here deferred to Experts: “That determination was based on data showing that the COVID–19 virus can spread rapidly among healthcare workers and from them to patients, and that such spread is more likely when healthcare workers are unvaccinated”.

More likely. How much more likely. A bit? A skosh? A dot? Near as I can see, we have a SCOTUS ruling based on a wee p-value. First time, perhaps?

This one is my favorite, a confirmation of the triumph of the matriarchy:

In addition to the threat posed by infacility transmission itself, the Secretary also found that “fear of exposure” to the virus “from unvaccinated health care staff can lead patients to themselves forgo seeking medically necessary care,” creating a further “ris[k] to patient health and safety.”

Can lead. Can. Another wee p-value. Mixed with fear and angst.

This is certainly matriarchal, the sort of reasoning that is on the rise. This is Canada, but they just put out a law banning “any conduct with the intent to provoke a state of fear” near abortuaries. We don’t want the ladies to be afraid.

In the “Health” ruling, the Court is on somewhat firmer precedence ground: “Vaccination requirements are a common feature of the provision of healthcare in America: Healthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella.”

Deferring to Experts on this new medicine makes more (legal) sense. In States, and not at the federal level. It also assumes the Experts have made no mistakes, and were not over-certain. As all evidence shows they were and are. Anyway, if they would have just argued this, and not brought in all the tears and fears, they would have had a more coherent ruling.

Yet they continuously invoke Experts, most stupidly by dismissing the argument that those with naturally acquired immunity should not be forced to be vaccinated. Because the Secretary “examine[d] the relevant data” and concluded natural immunity doesn’t count! This is an atrocious, and quite idiotic, Expert mistake. The Secretary is either ignorant (not unlikely) or lying, just to stick it to those who won’t get jabbed.

Thomas and Alito—as we expected from these august gentlemen—and Gorsuch and Barrett—as we did not expect—dissented.

They rightly point out “the omnibus rule compels millions of healthcare workers to undergo an unwanted medical procedure that ‘cannot be removed at the end of the shift'”.

“Had Congress wanted to grant CMS [Centers for Medicare and Medicaid Services] power to impose a vaccine mandate across all facility types, it would have done what it has done elsewhere—specifically authorize one.” This is the usual. Congersscreatures hiding behind bureaucrats, to avoid voting for the record. Voting caused this (for why, see the Voting Fallacy). That’s why (you’re tired of hearing) the expertocracy flourishes.

The Fearless Four spend a lot of time going into the specifics of the law up to this point, and its limitations. Such that it “regulates long-term care facilities and mandates an ‘infection control program’ among its ‘health and safety’ provisions…But that infection-control provision focuses on sanitizing the facilities’ ‘environment,’ not its personnel.”

That kind of law isn’t interesting to the majority, who were happy to extend the law by themselves, as authorized by Experts.

The kind of law extension that is of more interest is this:

Vaccine mandates also fall squarely within a State’s police power…, and, until now, only rarely have been a tool of the Federal Government. If Congress had wanted to grant CMS authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly. It did not.

This is an enormous usurpation and centralization of power. It would, of course, have been far worse had OSHA been upheld, but this is bad enough. Because it sets precedence. Future courts are free to ignore OSHA and point to this. (Thanks, John “Compromise” Roberts!)

Alito, that good man, wrote his own dissent, to which the other three also signed on. As usual, he writes clearly. I’m tempted to quote too much, so please go and read it yourself.

I join JUSTICE THOMAS’s dissent because I do not think that the Federal Government is likely to be able to show that Congress has authorized the unprecedented step of compelling over 10,000,000 healthcare workers to be vaccinated on pain of being fired…Before concluding that the Federal Government possesses this authority, we should demand stronger statutory proof than has been mustered to date.

But even if the Federal Government has the authority to require the vaccination of healthcare workers, it did not have the authority to impose that requirement in the way it did.

He then tags the expertocracy: “Today, however, most federal law is not made by Congress. It comes in the form of rules issued by unelected administrators.” We’re supposed to be able to petition these Experts, but “In these cases, the relevant agency did none of those things [liked allowing public comment], and the Court rewards this extraordinary departure from ordinary principles of administrative procedure.”

Alito sees, like we do, what’s coming.

Today’s decision will ripple through administrative agencies’ future decisionmaking. The Executive Branch already touches nearly every aspect of Americans’ lives. In concluding that CMS had good cause to avoid notice-and-comment rulemaking, the Court shifts the presumption against compliance with procedural strictures from the unelected agency to the people they regulate.

This just is the expertocracy.

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